Anwar et al v. Fairfield Greenwich Limited et al

Filing 1533

SETTLEMENT AGREEMENT with PwC Defendants. Document filed by Harel Insurance Company, Ltd., Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit A, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit A-3, #5 Exhibit B)(Barrett, David)

EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PASHA ANWAR, et al.,
Plaintiffs,

Master File No. 09-cv-118 (VM) (FM)

v.
FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.

ORDER PRELIMINARILY APPROVING SETTLEMENT AND
PROVIDING FOR NOTICE OF PROPOSED SETTLEMENT
WHEREAS, a class action is pending before the Court entitled Pasha Anwar, et al. v.
Fairfield Greenwich Limited, et al., Civil Action 09-cv-118 (VM), United States District Court
for the Southern District of New York (the “Action”);
WHEREAS, the Court has reviewed the Stipulation of Settlement dated as of January 6,
2016 (the “Stipulation”), which has been entered into by the Representative Plaintiffs (on behalf
of themselves and the Settlement Class) and the PwC Defendants (the “Settling Parties”);
WHEREAS, the Stipulation which, together with the exhibits annexed thereto, sets forth
the terms and conditions for a proposed settlement and dismissal of the Action with the PwC
Defendants with prejudice (the “PwC Settlement”);
WHEREAS, the Settling Parties have made application, pursuant to Federal Rule of Civil
Procedure 23(e), for an order preliminarily approving the Settlement, and the Court having read
and considered the Stipulation, the exhibits annexed thereto, and submissions made relating to
the Settlement;

WHEREAS, the Settling Parties have consented to the entry of this Order; and
WHEREAS, all capitalized and defined terms contained herein shall have the same
meaning as set forth in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED:
1.

The Court does hereby preliminarily approve the Stipulation and the Settlement

set forth therein, subject to further consideration at the Settlement Hearing, as described below.
2.

Pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure and

for the purposes of the Settlement only, the Action is hereby preliminarily certified as a class
action on behalf of all Persons who were Beneficial Owners of shares or limited partnership
interests in the Funds as of December 10, 2008 (whether as holders of record or traceable to a
shareholder or limited partner account of record) and who suffered a Net Loss of principal
invested in the Funds, excluding (i) Opt-Outs from the PwC Settlement Class as defined in the
Stipulation of Settlement; (ii) any Persons who have been dismissed from this Action with
prejudice or who are barred by prior judgment or settlement from asserting any of the claims
against the PwC Defendants set forth in the SCAC; (iii) Fairfield Sigma Limited; (iv) Fairfield
Lambda Limited; and (v) the Defendants and any entity in which the Defendants have a
controlling interest, and the officers, directors, affiliates, legal representatives, attorneys,
immediate family members (as defined in 17 C.F.R. 240.16a-1(e)), heirs, successors, subsidiaries
and/or assigns of any such individual or entity in their capacity as such (except for any Citco
Defendant in its role as nominee or record shareholder for investors) (collectively, the
“Settlement Class Members”).

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3.

The Court finds, preliminarily and for purposes of this Settlement only, that the

prerequisites for a class action under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil
Procedure have been satisfied in that: (a) the number of Settlement Class Members is so
numerous that joinder of all members of the Settlement Class is impracticable; (b) there are
questions of law or fact common to the Settlement Class Members that predominate over any
individual questions; (c) the claims of the Representative Plaintiffs are typical of the claims of
the Settlement Class they seek to represent; (d) the Representative Plaintiffs fairly and
adequately represent the interests of the Settlement Class; and (e) a class action is superior to
other available methods for the fair and efficient adjudication of the Action.
4.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, preliminarily and for

the purposes of this Settlement only, the Representative Plaintiffs are appointed as the class
representatives on behalf of the Settlement Class, and Boies, Schiller & Flexner LLP, Wolf
Popper LLP, and Lovell Stewart Halebian Jacobson LLP are hereby appointed Lead Counsel for
the Settlement Class (“Plaintiffs’ Lead Counsel”). Plaintiffs’ Lead Counsel have the authority to
enter into the Stipulation on behalf of the Settlement Class and are authorized to act on behalf of
the Settlement Class with respect to all acts or consents required by or that may be given
pursuant to the Settlement.
5.

The Court finds that: (a) the Stipulation resulted from good faith, arm’s-length

negotiations; and (b) the Stipulation is sufficiently fair, reasonable and adequate to the
Settlement Class Members to warrant providing notice of the Settlement to Settlement Class
Members and holding a Settlement Hearing.

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6.

The Settlement Hearing shall be held before the Honorable Victor Marrero on

___________ _____, 2016, at __:__ __.m., at the United States District Court for the Southern
District of New York, 500 Pearl Street, New York, New York, 10007, to determine whether the
proposed Settlement of the Action with the PwC Defendants on the terms and conditions
provided for in the Stipulation is fair, reasonable and adequate to the Settlement Class and should
be approved by the Court; whether a Final Judgment and Order of Dismissal with Prejudice (the
“Final Judgment”) as provided in Exhibit B to the Stipulation should be entered herein; whether
the proposed Plan of Allocation should be approved; to determine the amount of fees and
expenses that should be awarded to Plaintiffs’ Counsel; and to rule upon such other matters as
the Court may deem appropriate. The Court may adjourn the Settlement Hearing without further
notice to Settlement Class Members.
7.

The Court approves, as to form and content, the Notice of Proposed Settlement of

Class Action and Settlement Fairness Hearing and Motion for Attorneys’ Fees and
Reimbursement of Expenses (the “Notice”), the Summary Notice (the “Summary Notice”), and
the Proof of Claim and Release form (the “Proof of Claim”), annexed as Exhibits A-1, A-2 and
A-3 to the Stipulation.
8.

The Court appoints Rust Consulting as the Claims Administrator to supervise and

administer the notice procedure as well as the processing of claims, as follows:
(a)

Not later than fifteen (15) days after the date of this Order (the “Notice

Date”), the Claims Administrator shall cause a copy of the Notice and the Proof of Claim,
substantially in the forms annexed as Exhibits A-1 and A-3 to the Stipulation, to be mailed by
first class mail to all record owners of shares or limited partnership interests in the Funds as of
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December 10, 2008 and all Settlement Class Members who can be identified with reasonable
effort, including all Persons who filed accepted claims in the FG or GlobeOp settlements or who
requested exclusion from the Citco Settlement class or filed claims in the Citco settlement as of
the date of this Order ;
(b)

Not later than thirty (30) days after the date of this Order, the Claims

Administrator shall cause the Summary Notice to be published in the international editions of
The Wall Street Journal (excluding North America) on one occasion , and shall cause the
Summary Notice to be published for worldwide distribution (including North America) over PR
Newswire.
9.

Record owners who are nominees or custodians who held as of December 10,

2008, shares or limited partnership interests of the Funds for the benefit of Settlement Class
Members, and who have not previously provided the Claims Administrator with the names,
addresses, and email addresses of Beneficial Owners, shall within ten (10) days of receipt of the
Notice and Proof of Claim as provided in ¶ 8(a) hereof, either (i) request additional copies of the
Notice and Proof of Claim sufficient to send the Notice and Proof of Claim to all Beneficial
Owners for whom they are nominee or custodian, and within ten (10) days after receipt thereof
send copies to such Beneficial Owners; or (ii) provide a list of the names, addresses and email
addresses of such Beneficial Owners to the Claims Administrator, in which event the Claims
Administrator shall promptly deliver the Notice and Proof of Claim to such Beneficial Owners.
Nominees who elect to send the Notice and Proof of Claim to their Beneficial Owners shall send
a statement to the Claims Administrator confirming that the mailing was made as directed, and
subject to any confidentiality agreement, law or regulation that may limit their ability to do so,
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shall provide the Claims Administrator with a list of the names and addresses of the Persons to
whom the Notice and Proof of Claim were delivered. The Claims Administrator shall, if
requested, reimburse banks, brokerage houses or other nominees or custodians out of the
Settlement Fund solely for their reasonable out-of-pocket expenses incurred in providing notice
to Beneficial Owners, which expenses would not have been incurred except for the sending of
such notice, and subject to further order of this Court with respect to any dispute concerning such
reimbursement.
10.

Not later than fifteen (15) days after the date of this Order, the Claims

Administrator shall cause the Stipulation and its exhibits, this Preliminary Approval Order, and a
copy of the Notice to be posted on the following website: www.fairfieldgreenwichlitigation.com.
11.

Not later than eighty (80) days after the date of this Order, Plaintiffs’ Lead

Counsel shall cause to be filed with the Court proof, by affidavit or declaration, of the mailing
and publishing required by this Order.
12.

The forms and methods set forth herein of notifying Settlement Class Members of

the Settlement and its terms and conditions meet the requirements of due process, Rule 23 of the
Federal Rules of Civil Procedure, and Section 21D(a)(7) of the Exchange Act, 15 U.S.C. 78u4(a)(7), as amended by the Private Securities Litigation Reform Act of 1995; constitute the best
notice practicable under the circumstances; and constitute due and sufficient notice to all Persons
entitled thereto.
13.

All Settlement Class Members shall be bound by all determinations and

judgments in this Action concerning the Settlement, unless such Persons request exclusion from
the Settlement Class in a timely and proper manner.
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14.

Any Person falling within the definition of the Settlement Class may, upon

request, be excluded from the Settlement Class. Any request for exclusion must be in the form
of a written, signed statement (the “Request for Exclusion”) and received by the Claims
Administrator at the address designated in the Notice on or before 35 days prior to the Settlement
Hearing (the “Exclusion Deadline”).
15.

In order to be valid, each such Request for Exclusion (A) must state the name,

address, email address and telephone number of the Person seeking exclusion; state that the
sender “requests exclusion from the PwC Settlement Class in Anwar, et al. v. Fairfield
Greenwich Limited, et al., Case No. 09-cv-118,” and state (i) the full name of the Fund(s)
purchased; (ii) the date(s), number and dollar amount of shares or limited partnership interests
purchased, and of any redemption transactions; (iii) the dates and amounts of any other
recoveries the Person has received in respect of that Person’s investment in the Fund(s); and (iv)
the number of shares or limited partnership interests held by that Person in the Fund(s) as of
December 10, 2008; and (B) must be submitted with documentary proof (i) of all transactions in
Fund shares or limited partnership interests; and (ii) demonstrating the Person’s status as a
Beneficial Owner of the Fund(s). Any such Request for Exclusion must be signed and submitted
by the Beneficial Owner.
16.

A Request for Exclusion shall not be valid or effective unless it provides the

required information and is made within the time stated above, or the exclusion is otherwise
accepted by the Court. The Claims Administrator shall provide all Requests for Exclusion and
supporting documentation submitted therewith (including untimely requests) to counsel for the
Settling Parties as soon as possible and no later than the Exclusion Deadline or upon the receipt
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thereof (if later than the Exclusion Deadline). The Settlement Class will not include any Person
who delivers a valid and timely Request for Exclusion.
17.

Any Settlement Class Member who submits a Request for Exclusion shall not be

deemed to have submitted to the jurisdiction of any Court in the United States for any matter on
account of such submission, and any Settlement Class Member who submits a Proof of Claim
thereby submits to the jurisdiction of this Court with respect only to the subject matter of such
Proof of Claim and all determinations made by this Court thereon and shall not be deemed to
have submitted to the jurisdiction of this Court or of any court in the United States for any other
matter on account of such submission.
18.

Any Person who submits a Request for Exclusion may thereafter submit to the

Claims Administrator a written revocation of that Request for Exclusion, provided that it is
received no later than two business days before the Settlement Hearing, in which event that
Person will be included in the Settlement Class.
19.

All Persons who submit a valid, timely and unrevoked Request for Exclusion will

be forever barred from receiving any payments pursuant to the Settlement.
20.

Any Settlement Class Member who wishes to share in the distribution of the

proceeds of the Settlement shall complete and submit a Proof of Claim form in accordance with
the instructions contained therein. Unless the Court orders otherwise, all Proof of Claim forms
must be received by the Claims Administrator no later than one hundred and twenty (120) days
after the Notice Date. Any Settlement Class Member who does not submit a Proof of Claim and
the information and documentation required therein within the time allowed shall be barred from

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sharing in the distribution of the proceeds of the Settlement, unless otherwise ordered by the
Court.
21.

Except where a Settlement Class Member who submits a Request for Exclusion

commences or otherwise prosecutes or pursues a Released Claim against a Released Party, all
information submitted by a Settlement Class Member in a Request for Exclusion or a Proof of
Claim shall be treated as confidential protected information and may not be disclosed by the
Claims Administrator, its affiliates or the Settling Parties to any third party absent a further order
of this Court upon a showing of necessity, except as set forth in ¶ 16, and any such information
that is submitted to the Court shall be filed under seal.
22.

Any Settlement Class Member may enter an appearance in the Action, at their

own expense, individually or through counsel of their own choice, in which case such counsel
must file with the Clerk of the Court a notice of such appearance. Absent entry of an appearance
by counsel, Settlement Class Members will be represented by Plaintiffs’ Lead Counsel.
23.

Any Settlement Class Member may appear and show cause why the proposed

Settlement should or should not be approved as fair, reasonable and adequate, why a judgment
should or should not be entered thereon, why the Plan of Allocation should or should not be
approved, or why attorneys’ fees and reimbursement of expenses or an incentive award should or
should not be awarded to Plaintiffs’ Counsel or the Representative Plaintiffs; provided, however,
that no Settlement Class Member or any other Person shall be heard or entitled to contest the
approval of the terms and conditions of the proposed Settlement, or, if approved, the Final
Judgment, or any other order relating thereto, unless that Person has filed appropriate objections,
affidavits and briefs with the Clerk of the United States District Court for the Southern District of
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New York, on or before thirty-five (35) days prior to the Settlement Hearing and delivered
copies of any such papers to counsel identified in the Notice on or before such date. Any
Settlement Class Member who does not make an objection in the manner provided shall be
deemed to have waived such objection and shall forever be foreclosed from making any such
objection, unless otherwise ordered by the Court.
24.

All funds held by the Escrow Agent shall be deemed and considered to be in

custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such
time as such funds shall be distributed or returned pursuant to the Stipulation and Plan of
Allocation and/or further order(s) of the Court.
25.

All papers in support of the Settlement, the Plan of Allocation, Representative

Plaintiffs’ application for reimbursement of expenses or an incentive award, and the application
for attorneys’ fees or expenses, shall be filed and served not later than fifty (50) days prior to the
Settlement Hearing. Any reply papers shall be filed and served no later than fourteen (14) days
prior to the Settlement Hearing.
26.

The PwC Defendants, their counsel and the Released Parties shall have no

responsibility for or liability with respect to the Plan of Allocation or any application for
attorneys’ fees or expenses submitted by Plaintiffs’ Counsel or the Representative Plaintiffs, and
such matters will be considered separately from the fairness, reasonableness and adequacy of the
Settlement.
27.

All reasonable expenses incurred in identifying and notifying Settlement Class

Members, as well as in administering the Settlement, including payment of any taxes, shall be
paid as set forth in the Stipulation. In the event the Settlement is not approved by the Court, or
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otherwise fails to become effective, neither the Representative Plaintiffs nor Plaintiffs’ Counsel
shall have any obligation to repay any amounts actually and properly disbursed from the
Settlement Fund to pay for such expenses.
28.

Neither the Stipulation, nor any of its terms or provisions, nor any of the

negotiations or proceedings connected with it, shall be construed as an admission or concession
by the PwC Defendants or any of the Released Parties of the truth of any of the allegations in the
Action, or of any liability, fault, or wrongdoing of any kind and shall not be construed as, or
deemed to be evidence of or an admission or concession that the Representative Plaintiffs or any
Settlement Class Members have suffered any damages, harm, or loss. Further, neither the
Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings
connected with it, nor this Order shall be construed as an admission or concession by the
Representative Plaintiffs of the validity of any factual or legal defense or of any infirmity in any
of the claims or facts alleged in this Action.
29.

The PwC Defendants may elect to terminate the Settlement only as provided in

the Stipulation. In such event, or in the event the Settlement does not become effective in
accordance with the terms of the Stipulation or the Effective Date does not occur, then the
Stipulation and this Order (including any amendment(s) thereof, and except as expressly
provided in the Stipulation or by order of the Court) shall be rendered null and void, of no further
force or effect, and without prejudice to any Settling Party, and may not be introduced as
evidence or used in any action or proceeding by any Person against the Settling Parties or the
Released Parties, and each shall be restored to his, her or its respective litigation positions as they
existed prior to the execution of the Stipulation.
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30.

Pending final determination of whether the Settlement should be approved or

further order of the Court, the Court hereby stays all litigation of claims and related discovery in
the Action between the Representative Plaintiffs and Settlement Class Members on one hand and
the PwC Defendants on the other, except as provided in the Stipulation and as necessary to carry
out or comply with the terms and conditions of the Stipulation.
31.

Except as provided in the Stipulation, pending final determination of whether the

Settlement should be approved or further order of the Court, no potential Settlement Class
Member, whether directly, representatively or in any other capacity, and whether or not such
Persons have appeared in the Action, shall commence or prosecute in any court or forum any
proceeding involving the subject matter of any of the Released Claims against any of the
Released Parties. This injunction is necessary to protect and effectuate the Settlement, this
Order, and the Court’s flexibility and authority to effectuate the Settlement and to enter judgment
when appropriate, and is ordered in aid of the Court’s jurisdiction and to protect its judgments.
32.

The Court reserves the right to consider all further applications arising out of or

connected with the Stipulation. The Court may approve the Settlement, with such modifications
as may be agreed to by the Settling Parties, without further notice to the Settlement Class, where
to do so would not impair Settlement Class Members’ rights in a manner inconsistent with Rule
23 and due process of law.
IT IS SO ORDERED.
DATED: _______________
The Honorable Victor Marrero
United States District Judge

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